Even consent orders can be set aside

Typically, Consent Orders are the result of negotiated settlements to which parties agree to be bound. For that reason, the court does not usually interfere with them, even when one party no longer wishes to be bound. However, as the case of WA vs Executors of the Estate of HA & Others [2015] EWHC 2233 shows, there are some cases in which the English court will make an exception.

The couple met in 1995 and got married in 1997 after signing a prenuptial agreement which provided that neither party would make a claim against the other in the event of divorce. Although the husband had some measure of wealth (more than 2 Million Pounds Sterling), it was modest compared to that of his "fabulously wealthy" wife (approximately 242 Million Pounds Sterling).

While married, the couple and their children lived on a 30 million pounds sterling estate that was owned by the wife. She completely financed its renovation. After the couple separated in 2014, the husband eventually removed from the estate, but his mother continued to reside in a house there.

Through their attorneys-at-law, the couple negotiated an agreement for the wife to pay 17.3 million pounds sterling to the husband. (Surprisingly, the prenuptial agreement did not feature in the discussions.) The agreement provided for the settlement sum to be paid in two parts; the first in November 2014 and the second within fourteen days after the husband's mother vacated the estate.

The first payment was made, the husband purchased a house for his mother and she vacated the estate in January 2015. However, 22 days after of the order, before the second payment was made, the husband committed suicide. It was then discovered that, under a new will he executed in September 2014, the husband left all of his money to his three adult brothers rather than to his three children. He also left a special direction that none of that money should be returned to his wife.

The wife filed an application to appeal against the consent order out of time. She relied on the ground that "the husband required the money to meet his own needs which has been totally invalidated by his death". The main point raised in the wife's arguments was that the husband's death was not foreseeable and, given the fact that the order was intended to satisfy his needs, the first tranche of the settlement sum should be repaid and there should be no requirement to pay the second tranche.

Conditions to be satisfied

The court cited four conditions to be satisfied in order to set aside a consent order. It must be shown that an unforeseeable event occurred and that:

(a) The event occurred since the making of the order and invalidates the basis or fundamental assumption upon which the order was made so that an appeal would be certain or very likely to succeed.

(b) The new event should have occurred within a relatively short time of the order having been made.

(c) The application for leave to appeal out of time should be made reasonably promptly in the circumstances of the case.

(d) The grant of leave to appeal out of time should not prejudice third parties who have acquired, in good faith and for valuable consideration, interests in property which is the subject matter of the relevant order.

The court considered the appeal and ruled in the wife's favour. The husband's estate was ordered to repay £3.6 million sterling to the wife. The settlement to the husband was thereby reduced to £5 million.